Proposed ethics rule would bar lawyers from threatening licensed professionals
The opposing counsel didn’t give Tallahassee attorney Edwin Bayó’s client, a veterinarian, much of a choice.
Accept their terms regarding a civil matter or face negative online reviews and a Board of Veterinary Medicine complaint.
To Bayo, it had the whiff of extortion.
“It really left a bad taste in my mouth,” he said.
A 1981 Stetson Law grad who is board certified in State and Federal Government and Administrative Practice, Bayó said other veterinarian clients have faced similar threats.
Recalling that a lawyer is prohibited from threatening another lawyer with disciplinary action, Bayo decided to research Florida Bar Rules, and those in other states.
“I really gave this quite a bit of thought,” he said.
Florida Bar Rule 4-3.4 (g) states that an attorney should not “present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.”
Subdivision (h) states that an attorney should not “present, participate in presenting, or threaten to present disciplinary charges under these rules solely to obtain an advantage in a civil matter.”
Something was missing, Bayó said.
“If it’s not kosher for a member of the Bar to threaten another member of the Bar with a Bar grievance to gain an advantage, why is it OK for that same Bar member to threaten a doctor, an engineer, a veterinarian, with an administrative complaint?”
A comparable rule in California prevents attorneys from threatening criminal or “administrative charges,” Bayó said.
Last September, Bayó reached out via email to veteran Florida Bar board member Larry Sellers of Tallahassee for help.
“I believe in this day and age of social media that an attorney should not participate in presenting or threatening to present negative social media reviews/posts and/or administrative complaints against a professional licensee solely to obtain an advantage in a civil matter,” Bayó wrote.
Last week, at a Board of Governors meeting in Naples, Board Review Committee on Professional Ethics Chair Michael Orr reported that the committee recently voted 5-2 in favor of proposed Bar rule amendments that would address Bayo’s concerns.
The proposed amendment to Florida Bar Rule 4-3.4 (Fairness to Opposing Party and Counsel) adds a subdivision (i) stating that a lawyer must not “present, participate in presenting, or threaten to present administrative charges solely to gain an advantage in a civil matter.”
The proposed amendment to Rule 4-4.4 (Respect for the Rights of a Third Person) would add language to subdivision (a).
The subdivision states, in part, that a lawyer may not use “means that have no substantial purpose” to embarrass, delay, or burden a third person.
The subdivision would further state that those means include, but are not limited to, “a lawyer threatening that the lawyer, the lawyer’s client, or a third party will make false extrajudicial statements to be disseminated by means of social media or other public communication intended to impugn another person or entity if the lawyer knows or reasonably should know that the statements are false.”
The proposed amendments go next to the Rules Committee for further review, Orr said.